Prosecutor had made a sufficient showing to rebut the
U.S. Supreme Court
United States v. Nixon, 418 U.S. 683 (1974)
United States v. Nixon
No. 73-1766
Argued July 8, 1974
Decided July 24, 1974*
418 U.S. 683
CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES
COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
Following indictment alleging violation of federal statutes by
certain staff members of the White House and political
supporters of the President, the Special Prosecutor filed a
motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces
tecum for the production before trial of certain tapes and
documents relating to precisely identified conversations and
meetings between the President and others. The President,
claiming executive privilege, filed a motion to quash the
subpoena. The District Court, after treating the subpoenaed
material as presumptively privileged, concluded that the Special
presumption and that the requirements of Rule 17(c) had been
satisfied. The court thereafter issued an order for an in camera
examination of the subpoenaed material, having rejected the
President's contentions (a) that the dispute between him and the
Special Prosecutor was nonjusticiable as an "intra-executive"
conflict and (b) that the judiciary lacked authority to review the
President's assertion of executive privilege. The court stayed its
order pending appellate review, which the President then sought
in the Court of Appeals. The Special Prosecutor then filed in this
Court a petition for a writ of certiorari before judgment (No. 73-
1766), and the President filed a cross-petition for such a writ
challenging the grand jury action (No. 73-1834). The Court
granted both petitions.
Held:
1. The District Court's order was appealable as a "final" order
under 28 U.S.C. 1291, was therefore properly "in" the Court of
Appeals, 28 U.S.C. 1254, when the petition for certiorari
before judgment was filed in this Court, and is now properly
before this Court for review. Although such an order is normally
not final and subject to appeal, an exception is made in a
"limited class of
Page 418 U. S. 684
cases where denial of immediate review would render
impossible any review whatsoever of an individual's claims,"
United States v. Ryan, 402 U. S. 530, 402 U. S. 533. Such an
exception is proper in the unique circumstances of this case,
where it would be inappropriate to subject the President to the
procedure of securing review by resisting the order and
inappropriate to require that the District Court proceed by a
traditional contempt citation in order to provide appellate review.
Pp. 418 U. S. 690-692.
2. The dispute between the Special Prosecutor and the
President presents a justiciable controversy. Pp. 418 U. S. 692-
697.
(a) The mere assertion of an "intra-branch dispute," without
more, does not defeat federal jurisdiction. United States v. ICC,
337 U. S. 426. P. 418 U. S. 693.
(b) The Attorney General, by regulation, has conferred upon the
Special Prosecutor unique tenure and authority to represent the
United States, and has given the Special Prosecutor explicit
power to contest the invocation of executive privilege in seeking
evidence deemed relevant to the performance of his specially
delegated duties. While the regulation remains in effect, the
Executive Branch is bound by it. United States ex rel. Accardi v.
Shaughnessy, 347 U. S. 260. Pp. 418 U. S. 694-696.
(c) The action of the Special Prosecutor within the scope of his
express authority seeking specified evidence preliminarily
determined to be relevant and admissible in the pending criminal
case, and the President's assertion of privilege in opposition
thereto, present issues "of a type which are traditionally
justiciable," United States v. ICC, supra, at 337 U. S. 430, and
the fact that both litigants are officers of the Executive Branch is
not a bar to justiciability. Pp. 418 U. S. 696-697.
3. From this Court's examination of the material submitted by the
Special Prosecutor in support of his motion for the subpoena,
much of which is under seal, it is clear that the District Court's
denial of the motion to quash comported with Rule 17(c), and
that the Special Prosecutor has made a sufficient showing to
justify a subpoena for production before trial. Pp. 418 U. S. 697-
702.
4. Neither the doctrine of separation of powers nor the
generalized need for confidentiality of high-level
communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial
process under all circumstances. See, e.g., 5 U. S. Madison, 1
Cranch 137, 5 U. S. 177; Baker v. Carr, 369 U. S. 186, 369 U. S.
211. Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, the confidentiality of
Page 418 U. S. 685
Presidential communications is not significantly diminished by
producing material for a criminal trial under the protected
conditions of in camera inspection, and any absolute executive
privilege under Art. II of the Constitution would plainly conflict
with the function of the courts under the Constitution. Pp. 418 U.
S. 703-707.
5. Although the courts will afford the utmost deference to
Presidential acts in the performance of an Art. II function, United
States v. Burr, 25 F.Cas. 187, 190, 191-192 (No. 14,694), when
a claim of Presidential privilege as to materials subpoenaed for
use in a criminal trial is based, as it is here, not on the ground
that military or diplomatic secrets are implicated, but merely on
the ground of a generalized interest in confidentiality, the
President's generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal
trial and the fundamental demands of due process of law in the
fair administration of criminal justice. Pp. 418 U. S. 707-713.
6. On the basis of this Court's examination of the record, it
cannot be concluded that the District Court erred in ordering in
camera examination of the subpoenaed material, which shall
now forthwith be transmitted to the District Court. Pp. 418 U. S.
713-714.
7. Since a president's communications encompass a vastly
wider range of sensitive material than would be true of an
ordinary individual, the public interest requires that Presidential
confidentiality be afforded the greatest protection consistent with
the fair administration of justice, and the District Court has a
heavy responsibility to ensure that material involving
Presidential conversations irrelevant to or inadmissible in the
criminal prosecution be accorded the high degree of respect due
a President, and that such material be returned under seal to its
lawful custodian. Until released to the Special Prosecutor, no in
camera material is to be released to anyone. Pp. 418 U. S. 714-
716.
No. 73-1766, 377 F.Supp. 1326, affirmed; No. 73-1834,
certiorari dismissed as improvidently granted.
BURGER, C.J., delivered the opinion of the Court, in which all
Members joined except REHNQUIST, J., who took no part in the
consideration or decision of the cases.
Page 418 U. S. 686
MR. CHIEF JUSTICE BURGER delivered the opinion of the
Court.
This litigation presents for review the denial of a motion, filed in
the District Court on behalf of the President of the United States,
in the case of United States v. Mitchell (D.C.Crim. No. 7110), to
quash a third-party subpoena duces tecum issued by the United
States District Court for the District of Columbia, pursuant to
Fed.Rule Crim.Proc. 17(c). The subpoena directed the President
to produce certain tape recordings and documents relating to
his conversations with aides and advisers. The court rejected
the President's claims of absolute executive privilege, of lack of
jurisdiction, and of failure to satisfy the requirements of Rule
17(c). The President appealed to the Court of Appeals. We
granted both the United States' petition for certiorari before
judgment (No. 7 1766), [Footnote 1] and also the President's
cross-petition for certiorari
Page 418 U. S. 687
before judgment (No. 73-1834), [Footnote 2] because of the
public importance of the issues presented and the need for their
prompt resolution. 417 U.S. 927 and 960 (1974).
On March 1, 1974, a grand jury of the United States District
Court for the District of Columbia returned an indictment
charging seven named individuals [Footnote 3] with various
offenses, including conspiracy to defraud the United States and
to obstruct justice. Although he was not designated as such in
the indictment, the grand jury named the President, among
others, as an unindicted coconspirator. [Footnote 4] On April 18,
1974, upon motion of the Special
Page 418 U. S. 688
Prosecutor, see n 8, infra, a subpoena duces tecum was issued
pursuant to Rule 17(c) to the President by the United States
District Court and made returnable on May 2, 1974. This
subpoena required the production, in advance of the September
9 trial date, of certain tapes, memoranda, papers, transcripts, or
other writings relating to certain precisely identified meetings
between the President and others. [Footnote 5] The Special
Prosecutor was able to fix the time, place, and persons present
at these discussions because the White House daily logs and
appointment records had been delivered to him. On April 30, the
President publicly released edited transcripts of 43
conversations; portions of 20 conversations subject to subpoena
in the present case were included. On May 1, 1974, the
President's counsel filed a "special appearance" and a motion to
quash the subpoena under Rule 17(c). This motion was
accompanied by a formal claim of privilege. At a subsequent
hearing, [Footnote 6] further motions to expunge the grand jury's
action naming the President as an unindicted coconspirator and
for protective orders against the disclosure of that information
were filed or raised orally by counsel for the President.
On May 20, 1974, the District Court denied the motion to quash
and the motions to expunge and for protective orders. 377
F.Supp. 1326. It further ordered "the President or any
subordinate officer, official, or employee with custody or control
of the documents or
Page 418 U. S. 689
objects subpoenaed," id. at 1331, to deliver to the District Court,
on or before May 31, 1974, the originals of all subpoenaed
items, as well as an index and analysis of those items, together
with tape copies of those portions of the subpoenaed recordings
for which transcripts had been released to the public by the
President on April 30. The District Court rejected jurisdictional
challenges based on a contention that the dispute was
nonjusticiable because it was between the Special Prosecutor
and the Chief Executive and hence "intra-executive" in
character; it also rejected the contention that the Judiciary was
without authority to review an assertion of executive privilege by
the President. The court's rejection of the first challenge was
based on the authority and powers vested in the Special
Prosecutor by the regulation promulgated by the Attorney
General; the court concluded that a justiciable controversy was
presented. The second challenge was held to be foreclosed by
the decision in Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d
700 (1973).
The District Court held that the judiciary, not the President, was
the final arbiter of a claim of executive privilege. The court
concluded that, under the circumstances of this case, the
presumptive privilege was overcome by the Special Prosecutor's
prima facie "demonstration of need sufficiently compelling to
warrant judicial examination in chambers. . . ." 377 F.Supp. at
1330. The court held, finally, that the Special Prosecutor had
satisfied the requirements of Rule 17(c). The District Court
stayed its order pending appellate review on condition that
review was sought before 4 p.m., May 24. The court further
provided that matters filed under seal remain under seal when
transmitted as part of the record.
On May 24, 1974, the President filed a timely notice of appeal
from the District Court order, and the certified record from the
District Court was docketed in the United
Page 418 U. S. 690
States Court of Appeals for the District of Columbia Circuit. On
the same day, the President also filed a petition for writ of
mandamus in the Court of Appeals seeking review of the District
Court order.
Later on May 24, the Special Prosecutor also filed, in this Court,
a petition for a writ of certiorari before judgment. On May 31, the
petition was granted with an expedited briefing schedule. 417
U.S. 927. On June 6, the President filed, under seal, a cross-
petition for writ of certiorari before judgment. This cross-petition
was granted June 1, 1974, 417 U.S. 960, and the case was set
for argument on July 8, 1974.
I
JURISDICTION
The threshold question presented is whether the May 20, 1974,
order of the District Court was an appealable order and whether
this case was properly "in" the Court of Appeals when the
petition for certiorari was filed in this Cort. 28 U.S.C. 1254.
The Court of Appeals' jurisdiction under 28 U.S.C. 1291
encompasses only "final decisions of the district courts." Since
the appeal as timely filed and all other procedural requirements
were met, the petition is properly before this Court for
consideration if the District Court order was final. 28 U.S.C.
1254(1), 2101(e).
The finality requirement of 28 U.S.C. 1291 embodies a strong
congressional policy against piecemeal reviews, and against
obstructing or impeding an ongoing judicial proceeding by
interlocutory appeals. See, e.g., Cobbledick v. United States,
309 U. S. 323, 309 U. S. 324-326 (1940). This requirement
ordinarily promotes judicial efficiency and hastens the ultimate
termination of litigation. In applying this principle to an order
denying a motion to quash and requiring the production of
evidence pursuant
Page 418 U. S. 691
to a subpoena duces tecum, it has been repeatedly held that the
order is not final, and hence not appealable. United States v.
Ryan, 402 U. S. 530, 402 U. S. 532 (1971); Cobbledick v. United
States, supra; Alexander v. United States, 201 U. S. 117 (1906).
This Court has
"consistently held that the necessity for expedition in the
administration of the criminal law justifies putting one who seeks
to resist the production of desired information to a choice
between compliance with a trial court's order to produce prior to
any review of that order, and resistance to that order with the
concomitant possibility of an adjudication of contempt if his
claims are rejected on appeal."
United States v. Ryan, supra, at 402 U. S. 533.
The requirement of submitting to contempt, however, is not
without exception, and in some instances the purposes
underlying the finality rule require a different result. For example,
in Perlman v. United States, 247 U. S. 7 (1918), a subpoena had
been directed to a third party requesting certain exhibits; the
appellant, who owned the exhibits, sought to raise a claim of
privilege. The Court held an order compelling production was
appealable because it was unlikely that the third party would risk
a contempt citation in order to allow immediate review of the
appellant's claim of privilege. Id. at 247 U. S. 12-13. That case
fell within the "limited class of cases where denial of immediate
review would render impossible any review whatsoever of an
individual's claims." United States v. Ryan, supra, at 402 U. S.
533.
Here too, the traditional contempt avenue to immediate appeal
is peculiarly inappropriate due to the unique setting in which the
question arises. To require a President of the United States to
place himself in the posture of disobeying an order of a court
merely to trigger the procedural mechanism for review of the
ruling would be
Page 418 U. S. 692
unseemly, and would present an unnecessary occasion for
constitutional confrontation between two branches of the
Government. Similarly, a federal judge should not be placed in
the posture of issuing a citation to a President simply in order to
invoke review. The issue whether a President can be cited for
contempt could itself engender protracted litigation, and would
further delay both review on the merits of his claim of privilege
and the ultimate termination of the underlying criminal action for
which his evidence is sought. These considerations lead us to
conclude that the order of the District Court was an appealable
order. The appeal from that order was therefore properly "in" the
Court of Appeals, and the case is now properly before this Court
on the writ of certiorari before judgment. 28 U.S.C. 1254; 28
U.S.C. 2101(e). Gay v. Ruff, 292 U. S. 25, 292 U. S. 30
(1934). [Footnote 7]
II
JUSTICIABILITY
In the District Court, the President's counsel argued that the
court lacked jurisdiction to issue the subpoena because the
matter was an intra-branch dispute between a subordinate and
superior officer of the Executive Branch, and hence not subject
to judicial resolution. That argument has been renewed in this
Court with emphasis on the contention that the dispute does not
present a "case" or "controversy" which can be adjudicated in
the federal courts. The President's counsel argues that the
federal courts should not intrude into areas committed to the
other branches of Government.
Page 418 U. S. 693
He views the present dispute as essentially a "jurisdictional"
dispute within the Executive Branch which he analogizes to a
dispute between two congressional committees. Since the
Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case, Confiscation
Cases, 7 Wall. 454 (1869); United States v. Cox, 342 F.2d 167,
171 (CA5), cert. denied sub nom. Cox v. Hauber, 381 U.S. 935
(1965), it is contended that a President's decision is final in
determining what evidence is to be used in a given criminal
case. Although his counsel concedes that the President ha
delegated certain specific powers to the Special Prosecutor, he
has not
"waived nor delegated to the Special Prosecutor the President's
duty to claim privilege as to all materials . . . which fall within the
President's inherent authority to refuse to disclose to any
executive officer."
Brief for the President 42. The Special Prosecutor's demand for
the items therefore presents, in the view of the President's
counsel, a political question under Baker v. Carr, 369 U. S. 186
(1962), since it involves a "textually demonstrable" grant of
power under Art. II.
The mere assertion of a claim of an "intra-branch dispute,"
without more, has never operated to defeat federal jurisdiction;
justiciability does not depend on such a surface inquiry. In
United States v. ICC, 337 U. S. 426 (1949), the Court observed,
"courts must look behind names that symbolize the parties to
determine whether a justiciable case or controversy is
presented." Id. at 337 U. S. 430. See also Powell v. McCormack,
395 U. S. 486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944);
United States ex rel. Chapman v. FPC, 345 U. S. 153 (1953);
Secretary of Agriculture v. United States, 347 U. S. 645 (1954);
FMB v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 483 n. 2
(1958); United States v. Marine Bancorporation, ante, p. 418 U.
S. 602; and United States v. Connecticut National Bank, ante, p.
418 U. S. 656.
Page 418 U. S. 694
Our starting point is the nature of the proceeding for which the
evidence is sought -- here, a pending criminal prosecution. It is
a judicial proceeding in a federal court alleging violation of
federal laws, and is brought in the name of the United States as
sovereign. Berger v. United States, 295 U. S. 78, 295 U. S. 88
(1935). Under the authority of Art. II, 2, Congress has vested
in the Attorney General the power to conduct the criminal
litigation of the United States Government. 28 U.S.C. 516. It
has also vested in him the power to appoint subordinate officers
to assist him in the discharge of his duties. 28 U.S.C. 509,
510, 515, 533. Acting pursuant to those statutes, the Attorney
General has delegated the authority to represent the United
States in these particular matters to a Special Prosecutor with
unique authority and tenure. [Footnote 8] The regulation gives
the
Page 418 U. S. 695
Special Prosecutor explicit power to contest the invocation of
executive privilege in the process of seeking evidence deemed
relevant to the performance of these specially delegated duties.
[Footnote 9] 38 Fed.Reg. 30739, as amended by 38 Fed.Reg.
32805.
So long as this regulation is extant, it has the force of law. In
United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260
(1954), regulations of the Attorney General delegated certain of
his discretionary powers to the Board
Page 418 U. S. 696
of Immigration Appeals and required that Board to exercise its
own discretion on appeals in deportation cases. The Court held
that, so long as the Attorney General's regulations remained
operative, he denied himself the authority to exercise the
discretion delegated to the Board even though the original
authority was his and he could reassert it by amending the
regulations. Service v. Dulles, 354 U. S. 363, 354 U. S. 388
(1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed
the basic holding of Accardi.
Here, as in Accardi, it is theoretically possible for the Attorney
General to amend or revoke the regulation defining the Special
Prosecutor's authority. But he has not done so. [Footnote 10] So
long as this regulation remains in force, the Executive Branch is
bound by it, and indeed the United States, as the sovereign
composed of the three branches, is bound to respect and to
enforce it. Moreover, the delegation of authority to the Special
Prosecutor in this case is not an ordinary delegation by the
Attorney General to a subordinate officer: with the authorization
of the President, the Acting Attorney General provided in the
regulation that the Special Prosecutor was not to be removed
without the "consensus" of eight designated leaders of
Congress. N 8, supra.
The demands of and the resistance to the subpoena present an
obvious controversy in the ordinary sense, but that alone is not
sufficient to meet constitutional standards. In the constitutional
sense, controversy means more than disagreement and conflict;
rather it means the kind of controversy courts traditionally
resolve. Here
Page 418 U. S. 697
at issue is the production or nonproduction of specified evidence
deemed by the Special Prosecutor to be relevant and admissible
in a pending criminal case. It is sought by one official of the
Executive Branch within the scope of his express authority; it is
resisted by the Chief Executive on the ground of his duty to
preserve the confidentiality of the communications of the
President. Whatever the correct answer on the merits, these
issues are "of a type which are traditionally justiciable." United
States v. ICC, 337 U.S. at 337 U. S. 430. The independent
Special Prosecutor, with his asserted need for the subpoenaed
material in the underlying criminal prosecution, is opposed by
the President, with his steadfast assertion of privilege against
disclosure of the material. This setting assures there is
"that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination
of difficult constitutional questions."
Baker v. Carr, 369 U.S. at 369 U. S. 204. Moreover, since the
matter is one arising in the regular course of a federal criminal
prosecution, it is within the traditional scope of Art. III power. Id.
at 369 U. S. 198.
In light of the uniqueness of the setting in which the conflict
arises, the fact that both parties are officer of the Executive
Branch cannot be viewed as a barrier to justiciability. It would be
inconsistent with the applicable law and regulation, and the
unique facts of this case, to conclude other than that the Special
Prosecutor has standing to bring this action, and that a
justiciable controversy is presented for decision.
III
RULE 17(c)
The subpoena duces tecum is challenged on the ground that the
Special Prosecutor failed to satisfy the requirements of Fed.Rule
Crim.Proc. 17(c), which governs
Page 418 U. S. 698
the issuance of subpoenas duces tecum in federal criminal
proceedings. If we sustained this challenge, there would be no
occasion to reach the claim of privilege asserted with respect to
the subpoenaed material. Thus, we turn to the question whether
the requirements of Rule 17(c) have been satisfied. See
Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U.
S. 61, 304 U. S. 64 (1938); Ashwander v. TVA, 297 U. S. 288,
297 U. S. 346-347 (1936) (Brandeis, J., concurring).
Rule 17(c) provides:
"A subpoena may also command the person to whom it is
directed to produce the books, papers, documents or other
objects designated therein. The court on motion made promptly
may quash or modify the subpoena if compliance would be
unreasonable or oppressive. The court may direct that books,
papers, documents or objects designated in the subpoena be
produced before the court at a time prior to the trial or prior to
the time when they are to be offered in evidence and may upon
their production permit the books, papers, documents or objects
or portions thereof to be inspected by the parties and their
attorneys."
A subpoena for documents may be quashed if their production
would be "unreasonable or oppressive," but not otherwise. The
leading case in this Court interpreting this standard is Bowman
Dairy Co. v. United States, 341 U. S. 214 (1951). This case
recognized certain fundamental characteristics of the subpoena
duces tecum in criminal cases: (1) it was not intended to provide
a means of discovery for criminal cases, id. at 341 U. S. 220; (2)
its chief innovation was to expedite the trial by providing a time
and place before trial for the inspection of
Page 418 U. S. 699
subpoenaed materials, [Footnote 11] ibid. As both parties agree,
cases decided in the wake of Bowman have generally followed
Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D.
335, 338 (SDNY 1952), as to the required showing. Under this
test, in order to require production prior to trial, the moving party
must show: (1) that the documents are evidentiary [Footnote 12]
and relevant; (2) that they are not otherwise procurable
reasonably in advance of trial by exercise of due diligence; (3)
that the party cannot properly prepare for trial without such
production and inspection in advance of trial, and that the failure
to obtain such inspection may tend unreasonably to delay the
trial; and (4) that
Page 418 U. S. 700
the application is made in good faith and is not intended as a
general "fishing expedition."
Against this background, the Special Prosecutor, in order to
carry his burden, must clear three hurdles: (1) relevancy; (2)
admissibility; (3) specificity. Our own review of the record
necessarily affords a less comprehensive view of the total
situation than was available to the trial judge, and we are
unwilling to conclude that the District Court erred in the
evaluation of the Special Prosecutor's showing under Rule
17(c). Our conclusion is based on the record before us, much of
which is under seal. Of course, the contents of the subpoenaed
tapes could not at that stage be described fully by the Special
Prosecutor, but there was a sufficient likelihood that each of the
tapes contains conversations relevant to the offenses charged in
the indictment. United States v. Gross, 24 F.R.D. 138 (SDNY
1959). With respect to many of the tapes, the Special
Prosecutor offered the sworn testimony or statements of one or
more of the participants in the conversations as to what was
said at the time. As for the remainder of the tapes, the identity of
the participants and the time and place of the conversations,
taken in their total context, permit a rational inference that at
least part of the conversations relate to the offenses charged in
the indictment.
We also conclude there was a sufficient preliminary showing
that each of the subpoenaed tapes contains evidence
admissible with respect to the offenses charged in the
indictment. The most cogent objection to the admissibility of the
taped conversations here at issue is that they are a collection of
out-of-court statements by declarants who will not be subject to
cross-examination, and that the statements are therefore
inadmissible hearsay. Here, however, most of the tapes
apparently contain conversations
Page 418 U. S. 701
to which one or more of the defendant named in the indictment
were party. The hearsay rule does not automatically bar all out-
of-court statements by a defendant in a criminal case. [Footnote
13] Declarations by one defendant may also be admissible
against other defendant upon a sufficient showing, by
independent evidence, [Footnote 14] of a conspiracy among one
or more other defendants and the declarant and if the
declarations at issue were in furtherance of that conspiracy. The
same is true of declarations of coconspirators who are not
defendants in the case on trial. Dutton v. Evans, 400 U. S. 74,
400 U. S. 81 (1970). Recorded conversations may also be
admissible for the limited purpose of impeaching the credibility
of any defendant who testifies or any other coconspirator who
testifies. Generally, the need for evidence to impeach witnesses
is insufficient to require its production in advance of trial. See,
e.g., United States v. Carter, 15 F.R.D. 367,
Page 418 U. S. 702
371 (DC 1954). Here, however, there are other valid potential
evidentiary uses for the same material, and the analysis and
possible transcription of the tapes may take a significant period
of time. Accordingly, we cannot conclude that the District Court
erred in authorizing the issuance of the subpoena duces tecum.
Enforcement of a pretrial subpoena duces tecum must
necessarily be committed to the sound discretion of the trial
court, since the necessity for the subpoena most often turns
upon a determination of factual issues. Without a determination
of arbitrariness or that the trial court finding was without record
support, an appellate court will not ordinarily disturb a finding
that the applicant for a subpoena complied with Rule 17(c). See,
e.g., Sue v. Chicago Transit Authority, 279 F.2d 416, 419 (CA7
1960); Shotkin v. Nelson, 146 F.2d 402 (CA10 1944).
In a case such as this, however, where a subpoena is directed
to a President of the United States, appellate review, in
deference to a coordinate branch of Government, should be
particularly meticulous to ensure that the standards of Rule
17(c) have been correctly applied. United States v. Burr, 25
F.Cas. 30, 34 (No. 14,692d) (CC Va. 1807). From our
examination of the materials submitted by the Special
Prosecutor to the District Court in support of his motion for the
subpoena, we are persuaded that the District Court's denial of
the President's motion to quash the subpoena was consistent
with Rule 17(c). We also conclude that the Special Prosecutor
has made a sufficient showing to justify a subpoena for
production before trial. The subpoenaed materials are not
available from any other source, and their examination and
processing should not await trial in the circumstances shown.
Bowman Dairy Co. v. United States, 341 U. S. 214 (1951);
United States v. Iozia, 13 F.R.D. 335 (SDNY 1952).
Page 418 U. S. 703
IV
THE CLAIM OF PRIVILEGE A
Having determined that the requirements of Rule 17(c) were
satisfied, we turn to the claim that the subpoena should be
quashed because it demands "confidential conversations
between a President and his close advisors that it would be
inconsistent with the public interest to produce." App. 48a. The
first contention is a broad claim that the separation of powers
doctrine precludes judicial review of a President's claim of
privilege. The second contention is that, if he does not prevail on
the claim of absolute privilege, the court should hold as a matter
of constitutional law that the privilege prevails over the
subpoena duces tecum.
In the performance of assigned constitutional duties, each
branch of the Government must initially interpret the
Constitution, and the interpretation of its powers by any branch
is due great respect from the others. The President's counsel,
as we have noted, reads the Constitution as providing an
absolute privilege of confidentiality for all Presidential
communications. Many decisions of this Court, however, have
unequivocally reaffirmed the holding of Marbury v. Madison, 1
Cranch 137 (1803), that "[i]t is emphatically the province and
duty of the judicial department to say what the law is." Id. at 5 U.
S. 177. No holding of the Court has defined the scope of judicial
power specifically relating to the enforcement of a subpoena for
confidential Presidential communications for use in a criminal
prosecution, but other exercises of power by the Executive
Branch and the Legislative Branch have been found invalid as in
conflict with the Constitution. Powell v. McCormack, 395 U. S.
486 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 (1952). In a
Page 418 U. S. 704
series of cases, the Court interpreted the explicit immunity
conferred by express provisions of the Constitution on Members
of the House and Senate by the Speech or Debate Clause,
U.S.Const. Art. I, 6. Doe v. McMillan, 412 U. S. 306 (1973);
Gravel v. United States, 408 U. S. 606 (1972); United States v.
Brewster, 408 U. S. 501 (1972); United States v. Johnson 383 U.
S. 169 (1966). Since this Court has consistently exercised the
power to construe and delineate claims arising under express
powers, it must follow that the Court has authority to interpret
claims with respect to powers alleged to derive from enumerated
powers.
Our system of government
"requires that federal courts on occasion interpret the
Constitution in a manner at variance with the construction given
the document by another branch."
Powell v. McCormack, supra, at 395 U. S. 549. And in Baker v.
Carr, 369 U.S. at 369 U. S. 211, the Court stated:
"Deciding whether a matter has in any measure been committed
by the Constitution to another branch of government, or whether
the action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate
interpreter of the Constitution."
Notwithstanding the deference each branch must accord the
others, the "judicial Power of the United States" vested in the
federal courts by Art. III, 1, of the Constitution can no more be
shared with the Executive Branch than the Chief Executive, for
example, can share with the Judiciary the veto power, or the
Congress share with the Judiciary the power to override a
Presidential veto. Any other conclusion would be contrary to the
basic concept of separation of powers and the checks and
balances that flow from the scheme of a tripartite government.
The Federalist, No. 47, p. 313 (S. Mittell ed.
Page 418 U. S. 705
1938). We therefore reaffirm that it is the province and duty of
this Court "to say what the law is" with respect to the claim of
privilege presented in this case. Marbury v. Madison, supra at 5
U. S. 177.
B
In support of his claim of absolute privilege, the President's
counsel urges two grounds, one of which is common to all
governments and one of which is peculiar to our system of
separation of powers. The first ground is the valid need for
protection of communications between high Government
officials and those who advise and assist them in the
performance of their manifold duties; the importance of this
confidentiality is too plain to require further discussion. Human
experience teaches that those who expect public dissemination
of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the
decisionmaking process. [Footnote 15] Whatever the nature of
the privilege of confidentiality of Presidential communications in
the exercise of Art. II powers, the privilege can be said to derive
from the supremacy of each branch within its own assigned area
of constitutional duties. Certain powers and privileges flow from
the nature of enumerated powers; [Footnote 16] the protection of
the confidentiality of
Page 418 U. S. 706
Presidential communications has similar constitutional
underpinnings.
The second ground asserted by the President's counsel in
support of the claim of absolute privilege rests on the doctrine of
separation of powers. Here it is argued that the independence of
the Executive Branch within its own sphere, Humphrey's
Executor v. United States, 295 U. S. 602, 295 U. S. 629-630
(1935); Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 190-191
(1881), insulates a President from a judicial subpoena in an
ongoing criminal prosecution, and thereby protects confidential
Presidential communications.
However, neither the doctrine of separation of powers nor the
need for confidentiality of high-level communications, without
more, can sustain an absolute, unqualified Presidential privilege
of immunity from judicial process under all circumstances. The
President's need for complete candor and objectivity from
advisers calls for great deference from the courts. However,
when the privilege depends solely on the broad, undifferentiated
claim of public interest in the confidentiality of such
conversations, a confrontation with other values arises. Absent
a claim of need to protect military, diplomatic, or sensitive
national security secrets, we find it difficult to accept the
argument that even the very important interest in confidentiality
of Presidential communications is significantly diminished by
production of such material for in camera inspection with all the
protection that a district court will be obliged to provide.
Page 418 U. S. 707
The impediment that an absolute, unqualified privilege would
place in the way of the primary constitutional duty of the Judicial
Branch to do justice in criminal prosecutions would plainly
conflict with the function of the courts under Art. III. In designing
the structure of our Government and dividing and allocating the
sovereign power among three co-equal branches, the Framers
of the Constitution sought to provide a comprehensive system,
but the separate powers were not intended to operate with
absolute independence.
"While the Constitution diffuses power the better to secure
liberty, it also contemplate that practice will integrate the
dispersed powers into a workable government. It enjoins upon
its branches separateness but interdependence, autonomy but
reciprocity."
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S.
635 (Jackson, J., concurring). To read the Art. II powers of the
President as providing an absolute privilege as against a
subpoena essential to enforcement of criminal statutes on no
more than a generalized claim of the public interest in
confidentiality of nonmilitary and nondiplomatic discussions
would upset the constitutional balance of "a workable
government" and gravely impair the role of the courts under Art.
III.
C.
Since we conclude that the legitimate needs of the judicial
process may outweigh Presidential privilege, it is necessary to
resolve those competing interests in a manner that preserves
the essential functions of each branch. The right and indeed the
duty to resolve that question does not free the Judiciary from
according high respect to the representations made on behalf of
the President. United States v. Burr, 25 F.Cas. 187, 190, 191-
192 (No. 14,694) (CC Va. 1807).
Page 418 U. S. 708
The expectation of a President to the confidentiality of his
conversations and correspondence, like the claim of
confidentiality of judicial deliberations, for example, has all the
values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decisionmaking. A
President and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions, and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying
a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of Government, and
inextricably rooted in the separation of powers under the
Constitution. [Footnote 17] In Nixon v. Sirica, 159 U.S.App.D.C.
58, 487 F.2d 700 (1973), the Court of Appeals held that such
Presidential communications are "presumptively privileged," id.
at 75, 487 F.2d at 717, and this position is accepted by both
parties in the present litigation. We agree with Mr. Chief Justice
Marshall's observation, therefore, that "[i]n no case of his kind
would a court be required to proceed against the president as
against an ordinary individual." United States v. Burr, 25 F.Cas.
at 192.
But this presumptive privilege must be considered in light of our
historic commitment to the rule of law. This
Page 418 U. S. 709
is nowhere more profoundly manifest than, in our view, that "the
twofold aim [of criminal justice] is that guilt shall not escape or
innocence suffer." Berger v. United States, 295 U.S. at 295 U. S.
88. We have elected to employ an adversary system of criminal
justice in which the parties contest all issues before a court of
law. The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the facts. The
very integrity of the judicial system and public confidence in the
system depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that justice is
done, it is imperative to the function of courts that compulsory
process be available for the production of evidence needed
either by the prosecution or by the defense.
Only recently the Court restated the ancient proposition of law,
albeit in the context of a grand jury inquiry, rather than a trial,
"that 'the public . . . has a right to every man's evidence,' except
for those persons protected by a constitutional, common law, or
statutory privilege, United States v. Bryan, 339 U.S. [323, 339 U.
S. 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 284 U.
S. 438 (1932). . . ."
Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 688 (1972). The
privileges referred to by the Court are designed to protect
weighty and legitimate competing interests. Thus, the Fifth
Amendment to the Constitution provides that no man "shall be
compelled in any criminal case to be a witness against himself."
And, generally, an attorney or a priest may not be required to
disclose what has been revealed in professional confidence.
These and other interests are recognized in law by privileges
Page 418 U. S. 710
against forced disclosure, established in the Constitution, by
statute, or at common law. Whatever their origins, these
exceptions to the demand for every man's evidence are not
lightly created nor expansively construed, for they are in
derogation of the search for truth. [Footnote 18]
In this case, the President challenges a subpoena served on
him as a third party requiring the production of materials for use
in a criminal prosecution; he does so on the claim that he has a
privilege against disclosure of confidential communications. He
does not place his claim of privilege on the ground they are
military or diplomatic secrets. As to these areas of Art. II duties,
the courts have traditionally shown the utmost deference to
Presidential responsibilities. In C. & S. Air Lines v. Waterman
S.S. Corp., 333 U. S. 103, 333 U. S. 111 (1948), dealing with
Presidential authority involving foreign policy considerations, the
Court said:
"The President, both as Commander-in-Chief and as the
Nation's organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published to
the world. It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the
Executive taken on information properly held secret."
In United States v. Reynolds, 345 U. S. 1 (1953), dealing
Page 418 U. S. 711
with a claimant's demand for evidence in a Tort Claims Act case
against the Government, the Court said:
"It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable danger
that compulsion of the evidence will expose military matters
which, in the interest of national security, should not be divulged.
When this is the case, the occasion for the privilege is
appropriate, and the court should not jeopardize the security
which the privilege is meant to protect by insisting upon an
examination of the evidence, even by the judge alone, in
chambers."
Id. at 345 U. S. 10. No case of the Court, however, has
extended this high degree of deference to a President's
generalized interest in confidentiality. Nowhere in the
Constitution, as we have noted earlier, is there any explicit
reference to a privilege of confidentiality, yet to the extent this
interest relates to the effective discharge of a President's
powers, it is constitutionally based.
The right to the production of all evidence at a criminal trial
similarly has constitutional dimensions. The Sixth Amendment
explicitly confers upon every defendant in a criminal trial the
right "to be confronted with the witnesses against him" and "to
have compulsory process for obtaining witnesses in his favor."
Moreover, the Fifth Amendment also guarantees that no person
shall be deprived of liberty without due process of law. It is the
manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible
evidence be produced.
In this case, we must weigh the importance of the general
privilege of confidentiality of Presidential communications in
performance of the President's responsibilities against the
inroads of such a privilege on the fair
Page 418 U. S. 712
administration of criminal justice. [Footnote 19] The interest in
preserving confidentiality is weighty indeed, and entitled to great
respect. However, we cannot conclude that advisers will be
moved to temper the candor of their remarks by the infrequent
occasions of disclosure because of the possibility that such
conversations will be called for in the context of a criminal
prosecution. [Footnote 20]
On the other hand, the allowance of the privilege to withhold
evidence that is demonstrably relevant in a criminal trial would
cut deeply into the guarantee of due process of law and gravely
impair the basic function of the court. A President's
acknowledged need for confidentiality
Page 418 U. S. 713
in the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a
criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts, a criminal prosecution
may be totally frustrated. The President's broad interest in
confidentiality of communications will not be vitiated by
disclosure of a limited number of conversations preliminarily
shown to have some bearing on the pending criminal cases.
We conclude that, when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in
the fair administration of criminal justice. The generalized
assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial.
D Enforcement of the subpoena duces tecum was stayed pending
We have earlier determined that the District Court did not err in
authorizing the issuance of the subpoena. If a President
concludes that compliance with a subpoena would be injurious
to the public interest, he may properly, as was done here, invoke
a claim of privilege on the return of the subpoena. Upon
receiving a claim of privilege from the Chief Executive, it
became the further duty of the District Court to treat the
subpoenaed material as presumptively privileged and to require
the Special Prosecutor to demonstrate that the Presidential
material was "essential to the justice of the [pending criminal]
case." United States v. Burr, 25 F.Cas. at 192. Here, the District
Court treated the material as presumptively privileged,
proceeded to find that the Special
Page 418 U. S. 714
Prosecutor had made a sufficient showing to rebut the
presumption, and ordered an in camera examination of the
subpoenaed material. On the basis of our examination of the
record, we are unable to conclude that the District Court erred in
ordering the inspection. Accordingly, we affirm the order of the
District Court that subpoenaed materials be transmitted to that
court. We now turn to the important question of the District
Court's responsibilities in conducting the in camera examination
of Presidential materials or communications delivered under the
compulsion of the subpoena duces tecum.
E the United States. Mr. Chief Justice Marshall, sitting as a trial
this Court's resolution of the issues raised by the petitions for
certiorari. Those issues now having been disposed of, the
matter of implementation will rest with the District Court.
"[T]he guard, furnished to [the President] to protect him from
being harassed by vexatious and unnecessary subpoenas, is to
be looked for in the conduct of a [district] court after those
subpoenas have issued; not in any circumstance which is to
precede their being issued."
United States v. Burr, 25 F.Cas. at 34. Statements that meet the
test of admissibility and relevance must be isolated; all other
material must be excised. At this stage, the District Court is not
limited to representations of the Special Prosecutor as to the
evidence sought by the subpoena; the material will be available
to the District Court. It is elementary that in camera inspection of
evidence is always a procedure calling for scrupulous protection
against any release or publication of material not found by the
court, at that stage, probably admissible in evidence and
relevant to the issues of the trial for which it is sought. That
being true of an ordinary situation, it is obvious that the District
Court has
Page 418 U. S. 715
a very heavy responsibility to see to it that Presidential
conversations, which are either not relevant or not admissible,
are accorded that high degree of respect due the President of
judge in the Burr case, supra, was extraordinarily careful to point
out that
"[i]n no case of this kind would a court be required to proceed
against the president as against an ordinary individual."
25 F.Cas. at 192. Marshall's statement cannot be read to mean
in any sense that a President is above the law, but relates to the
singularly unique role under Art. II of a President's
communications and activities, related to the performance of
duties under that Article. Moreover, a President's
communications and activities encompass a vastly wider range
of sensitive material than would be true of any "ordinary
individual." It is therefore necessary [Footnote 21] in the public
interest to afford Presidential confidentiality the greatest
protection consistent with the fair administration of justice. The
need for confidentiality even as to idle conversations with
associates in which casual reference might be made concerning
political leaders within the country or foreign statesmen is too
obvious to call for further treatment. We have no doubt that the
District Judge will at all times accord to Presidential records that
high degree of deference suggested in United States v. Burr,
supra, and will discharge his responsibility to see to
Page 418 U. S. 716
it that, until released to the Special Prosecutor, no in camera
material is revealed to anyone. This burden applies with even
greater force to excised material; once the decision is made to
excise, the material is restored to its privileged status, and
should be returned under seal to its lawful custodian.
Since this matter came before the Court during the pendency of
a criminal prosecution, and on representations that time is of the
essence, the mandate shall issue forthwith.
Affirmed.
MR. JUSTICE REHNQUIST took no part in the consideration or
decision of these cases.
* Together with No. 73-1834, Nixon, President of the United
States v. United States, also on certiorari before judgment to the
same court.